Essence of notarial service

To understand the role of the Latin notary, we must consider a society with an integrated system of legal specialization. Whereas in the United States until recently, there exists only one kind of lawyer for all aspects of law (though most law firms have their specializations), Quebec and European, Latin, and Asian civil-law countries have officially divided their legal professions between advocates, for advocacy or litigation, and notaries, for "non-advocacy," i.e. mainly contractual and non-litigious family matters. Until 1992, France had five divisions of its legal profession.

Since the mid ninties, a new specialization in the american legal profession officially acknowledged is making its way in some states of the Union, inspired, it seems, by the latin notarial system and fueled by the increasing need of legal security for electronic and transnational instruments of commerce.

In Quebec, the notary acts in all areas of the law except litigation. The conveyancing of immovable property ("real estate" in common law) constitutes the major sector of activity at 55%. Like their European and Latin colleagues, Quebec notaries

  • are legal professionals acting in a liberal environment;
  • are vested with publica fides (the power to authenticate or certify);
  • deal with non-litigious matters;
  • must be impartial in acting for all parties; and
  • are expected to
    • give legal advice to all parties (all sides);
    • draft legal documents on their behalf;
    • authenticate those documents; and
    • keep records of transactions.

The power to authenticate or certify

In concrete terms, the Quebec notary has the authority to vest with an exceptionally high level of probative value the private documents he prepares, provided he complies with the formalism required by the law. A notarial deed is rarely invalidated by the courts, endowed as it is with the strongest possible presumption of truth. A party attempting to counter this presumption bears a heavy burden of rebuttal through a specific judicial procedure called "improbation." Probative value is justified by the duties (impartial counselling, expert drafting, etc) notaries must fulfil at all times.

The evidential force of a notarial document is not limited to the identity of the parties and whether they have indeed signed the document, but extends to all the facts stated therein, including the date, whether asserted by the parties themselves or seen, heard, and verified by the notary himself.

For instance, back-dating a notarial deed en minute (the original of which is kept by the notary) is almost impossible, since each notarial instrument or deed must be recorded in an unalterable repertory, and is given a serial number that cannot be changed.

Non-litigious matters

The notary in Quebec does not represent clients in advocacy or litigious matters. The professional laws governing both notaries and advocates clearly distinguish between two approaches to the practice of law: notaries have the exclusive right to give authenticity to deeds and instruments, and the duty to inform all parties, while advocates take sides and represent one party with the aim of overcoming the adverse party. They have opposing functions because they are answerable to different legal philosophies. The notary, with a duty to inform and advise all parties, acts somewhat as a conciliator/mediator and, when sealing a document, even as a judge. He does not represent a party; he acts for them all, rising above partisan advocacy to ensure the legality of a transaction.